Broad v Haas [2002] WASC 155

Bail Act, cl 3A, Pt C, Sch 1

1 WHITE AUJ: This is an application for release of the applicant on bail pending his trial on charges of possessing a prohibited drug, namely 6.93 grms of amphetamine with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act and of possession of a prohibited drug, namely cannabis.

2 At the time of his arrest on 1 April 2002, the applicant was on parole following his conviction and imprisonment for an offence of possession of amphetamine with intent to sell or supply.

3 The offence of possession of amphetamine with intent to sell or supply with which the applicant has been charged is a serious offence.

4 Accordingly, in accordance with the provisions of cl 3A of Pt C of Sch 1 of the Bail Act 1982, it is necessary for there to be exceptional circumstances before the applicant may be released to bail.

5 In support of his application, the applicant relies primarily upon the fact that there is likely to be a substantial delay before he is brought to trial on the charges laid against him. He intends to plead Not Guilty, as I understand it, and has not yet had a preliminary hearing. Counsel for the Crown informed me from the bar table that the results of forensic tests on material seized have not yet been ascertained. It seems likely that the applicant will not be brought to trial until some time next year.

6 The applicant relies also on the fact that his de facto wife, who has borne his child, suffers from post-natal depression, as evidenced by the certificate of her medical adviser, and he says in his affidavit that she is not coping with her circumstances.

7 He has the prospect of a job as a truck driver if he is released to bail.

8 The applicant submits that the case against him is not strong. The facts before me do not enable me to come to that conclusion or to form an opinion as to whether or not the prosecution case is strong.

9 Counsel for the Crown acknowledges that there is nothing in the material before me which would tend to show that, if released to bail, the applicant is likely to abscond or fail to attend court when required to do so.

10 Because of his arrest, the applicant has had his parole suspended but he suggests that, if he is released to bail, his parole may well be re-instated.

11 In Pinkstone v The Queen [2000] WASC 199 at 5, Heenan J said:

"The courts acknowledge that an accused person has a fundamental right to a speedy trial and they make strenuous efforts to protect that right. Despite those efforts, and despite the cooperation of the profession in the vast majority of cases, delay in bringing cases to trial is a troublesome feature of the administration of justice in this country. More than 12 years ago, in his paper Criminal Law and Justice (1988) 62 ALJ 160 at 163, Paul Byrne said:

'Taking into account the relevant social circumstances, it should not be unreasonable to expect that, unless there is a valid explanation for exceeding the limits, the trial of an accused person held in custody should take place within six months of the time of his or her arrest. For an accused person on bail, the trial should take place within eighteen months of the time of arrest.'

The limits proposed by Paul Byrne have not been achieved in this State for more than a decade. With the resources presently available they will not be achievable in the near future. Meanwhile, the present situation is unacceptable and it is a source of grave concern on the part of those who work within or who come into contact with the criminal justice system."

12 In Saka v The Queen [2001] WASC 92, McKechnie J said, in pars 38 - 40:

"38 The detention of a person presumed innocent by law for a period in excess of a year must be regarded with grave concern by all right-thinking members of the community. A grant or refusal of bail involves balancing considerations as to where the interests of justice may lie in a particular case.

39 A ready acceptance of lengthy periods of detention prior to trial can lead to injustice, not justice.

40 The State, using this term in its widest sense, brings the charge against an accused person and the State, in consequence, bears the burden of providing sufficient resources to enable the trial of a person to take place with reasonable expedition. Where, as here, the State objects to the release of an applicant on bail on the ground that the administration of justice may thereby be imperilled, it is incumbent on the State to provide the resources necessary to minimise the consequent injustice of a continued detention of a person who is at law presumed innocent of the charge. Consequently, where there is a lengthy delay before trial, the State will have a heavy burden to establish that, delay notwithstanding, the interests of justice require continued detention."

13 In Outman v The Queen, unreported, [2001] WASC 162, 11 June 2001, Roberts-Smith J referred with approval to McKechnie J's statement and pointed out that, if the applicant then before his Honour were acquitted, he would receive no compensation or recompense for the lengthy period he would have been kept in custody pending his trial and his Honour held that, in the circumstances and having regard to what his Honour had said as to the strength of the prosecution case, the length of the delay between the applicant's arrest and the possible date of the trial did constitute exceptional circumstances.

"15. In regard to my personal circumstances, I say as follows:

(a) I am 32-years of age, born on 8 October 1969.

(b) I have been in a defacto relationship with ANNE THOMAS for approximately 3-years 6-months. There is one child of the relationship, SHAYNA ANNE BROAD.

(c) I have two children from a previous marriage. I am currently involved in Family Court proceedings relating to property settlement.

(d) I was born in Geraldton and grew up in the country. All my ties are with Western Australia. My parents, who are approximately 70-years of age, reside in a caravan park.

(e) In regard to my criminal record, I have no offences for breach of bail. I am currently seeking a copy of my record.

(f) I am able to arrange a surety, and I am prepared to abide by any conditions imposed by the Court.

(g) I attended Minenew [sic] Primary School to Year-7, and then Dongara High School to Year-10.

(h) Throughout my life I have worked at various professions including a shearing shed hand, labourer, brickie labourer, and owned several businesses. I have owned a landscaping business and a trucking business.

(i) At the time of my arrest I was employed full time and I am in a position to take up further full time employment if granted bail.

(j) I am sole carer and provider for my defacto wife, ANNE THOMAS and our child SHAYNA ANNE. As a family unit, we have all shared a very strong bond.

(k) Following the birth of the baby, my defacto has suffered depression. The depression has made it very difficult for her to look after our child.

(l) I was actively involved in looking after the child during the night, and whenever I was able to attend home during the day. After work, I took the major role in looking after the child. I assisted with cooking and other activities.

(m) I am prepared to abide by any home detention bail as long as I am able to work.

(n) I understand from my lawyer that if I proceed to a Preliminary Hearing, the process of obtaining a Preliminary Hearing, proceeding to the District Court and eventually getting a trial will take in excess of 12-months.

(o) If convicted of the offence, I am advised by my lawyer that sentence could range anywhere between 18-months to 3-years imprisonment. If I remain in custody, I will receive no recompense for the time spent in custody.

(p) Further, my defacto wife and child will be at risk because of my defacto's poor health.

(q) In the past I have never breached any bail conditions, or absconded while on bail. I have no criminal record for breach of a bail undertaking.

(r) I am not now, nor have I been, regarded as a risk to the safety, welfare or property of any person, or interfered with anyone, or attempted to interfere with any witness involved in this matter.

(s) I concede that the offence for which I am charge [sic] is serious, but the case against me is not strong. I ask the Court to consider the circumstances of where the drug was found, which is basically an item used by females, and something unlikely to be in the possession of a male.

(t) If granted bail, I would be able to arrange a surety."

15 In my opinion, the combination of the following facts constitutes exceptional circumstances warranting the grant of bail in the present case:

1. The length of the likely delay before the applicant is brought to trial at some date in 2003;

2. The ill-health of the applicant's de facto spouse;

4. The unlikelihood of the applicant failing to appear when called upon to do so.

16 Accordingly, I shall grant bail to the applicant on the conditions that:

1. There be a personal recognisance by the applicant in the sum of $10,000 to appear when called upon;

2. There be a surety in the like sum, such surety to be approved by a Justice of the Peace.

3. That the applicant report in person to a police station to be designated by the Justice of the Peace on the Friday of each week;

4. That the applicant reside at 81 Agincourt Drive, Forrestfield until his trial.